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Alabama school-choice fight as Theater of the Absurd

Joshua Dunn

March 13, 2013

Alabama governor Robert Bentley signed into law a comprehensive school-choice bill that will equip those parents who wish to send their kids to another public or private school with tax credits—but not before a series of events too ridiculous to even be termed a farce.

Farce doesn't even begin to describe what happened last week in Alabama.

Two weeks ago, the Alabama House and Senate, both controlled by Republican supermajorities, passed the Alabama Accountability Act, giving parents with children in failing schools a tax credit for tuition at private schools. Naturally, organizations such as the Alabama Education Association (AEA), opposed as they are to letting students escape even the worst of public schools, howled that the measure violated state law. But this time, rather than at least having the decency to sue once the legislation was signed, the AEA decided to lawyer up before it even reached the governor’s desk.

Initially, the bill was called the School Flexibility Act and did not include tax credits. After the House and Senate passed different versions of the bill, the conference committee added the tax-credit provision and changed the name. The restructured and renamed legislation then passed 51-26 in the House and 22-11 in the Senate on party-line votes.

Horrified after realizing that a program increasing options for children trapped in failing schools had passed, the AEA sued. It asked a state judge to enjoin the governor from signing the legislation—claiming that the conference committee violated the state’s Open Meetings Act when it inserted the tax credit without sufficient deliberation. The judicial gods smiled on the AEA when the case went before Circuit Judge Charles Price, who had previously achieved momentary fame by declaring that a fellow judge could not display the Ten Commandments in his courtroom or begin sessions with prayer. After a brief hearing, Price agreed with the AEA, ruling that the state legislature could not send the bill to the governor and scheduling a hearing for mid-March over whether the legislature violated the Open Meetings Act. The state attorney general then appealed to the state Supreme Court.

The litigation raised two basic questions about the separation of powers. The first is whether the courts have the authority to oversee the procedures that the legislature establishes for itself. Typically, courts have ruled that, as a matter of separation of powers, they are not allowed to exercise this kind of oversight. But even if the Alabama courts were to intrude into the internal workings of the state legislature, it should be a question raised only after a bill has actually become law. After all, until a bill has been signed, no one can claim to have been harmed and, therefore, no one has standing.

The second and more significant question is whether the courts have the authority to actually stop a legislature from sending a bill to the governor to be signed. Passing a bill and sending it to the governor to be signed (or vetoed) are obviously exercises of legislative power. Legislative power is not granted to courts—that’s why they are courts and not legislatures. By definition, under a system of separation of powers, courts cannot have such power.

Of course, Price’s actions did raise some humorous possibilities: What if the legislature sent the legislation to the governor anyway? Would Price have dispatched marshals to block thoroughfares between the statehouse and governor’s office? Would he send marshals to confiscate all the governor’s pens?

Fortunately, the absurdity ended on Wednesday. “HB84 may or may not ever become law. Hence, the underlying dispute is not ripe for adjudication,” wrote the justices of the Alabama Supreme Court, lifting the temporary restraining order and allowing legislative staff to send the bill to Governor Bentley—which he then signed on Thursday morning. But the brazenness of this attempted unconstitutional power grab serves as a reminder of the cards that the unions and their supporters will play to keep children in their failing schools.

Joshua Dunn is an associate professor of political science at the University of Colorado–Colorado Springs and co-author of Education Next's Legal Beat column. A version of this article appeared on Fordham’s Choice Wordsblog.